Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Separating the Office of AGF from Minister of Justice 17 Aug 2018

Former National Security Adviser (NSA) to ex-President Goodluck Jonathan, Col. Sambo Dasuki (rtd), has been in detention since December 2015. He was again granted bail on the 2nd of July, 2018. The government has once more refused to release him, despite the perfection of his bail conditions. According to newspaper reports – referring to an interview granted to the Voice of America (VOA) Hausa service by the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) – the continued detention of Dasuki is for the public interest, which overrides his individual rights.
Director, Strategic Communications, Buhari Campaign Organisation, Festus Keyamo (SAN), echoed the same sentiment, reinforcing the rationale of the government. Keyamo also made reference to the decision of the courts to deny bail to his former client, Alhaji Mujahid Dokubo-Asari, on grounds of national security.

This article seeks to draw a distinction between the case of Asari and that of Dasuki and I will attempt to put context to the principle of overriding public interest. But it is proper to begin by stating that no person (individual or institution) has the right, power or privilege to negate the decision of the courts of law in a case, re-write his or her own judgment and proceed to follow his or her own way. That will promote anarchy, lawlessness and a bastardization of democracy. It undermines our Constitution and the principle of separation of powers.

The government as prosecutor (and therefore a party) of a charge before the courts does not get to choose what orders of the courts to obey because of its access to executive might. It does not get to review or willfully and disdainfully disobey an order of court. The government might as well act as accuser, prosecutor and judge and proceed to sentence Dasuki without even going through the rigmarole of a trial.

The recent call by the Chief Justice of Nigeria (CJN) for the removal of the Department of Public Prosecutions (DPP) from the AGF's office is an attempt to cure the anomaly of having accuser and prosecutor as one person. The inconceivable idea of having the same person as prosecutor and judge in a democracy seems to be what is playing out in Dasuki's case.

Bail is one of the rights exercisable by an accused person in our criminal justice system. It stems from the right of presumption of innocence enshrined in Section 36(5) of the Constitution. It is, however, not an absolute right. Like all things in life, the grant of bail is a balancing act – a balance between the right of the accused person not to serve punishment when the charge against him has not been proved and the right of the State to ensure the availability of the accused person to stand trial without interfering with the trial.

The underlying principle when an application for bail is being considered is to ensure that the accused stands his trial. Therefore, unless it is a felony (a crime punishable by imprisonment of a term of three years and above or by death), the courts will grant bail as of right, with or without conditions, depending on the circumstances of the case. Where it is, however, a felony, the court must judicially and judiciously exercise its discretion in deciding whether or not to grant bail after considering several factors, including the nature and severity of the charge, the gravity of punishment in the event of conviction, the likelihood of interfering with witnesses and the probability that the accused will appear for trial.

It is usually the disposition of the court to grant bail, therefore the burden is on the prosecution to show why bail should not be granted in a particular circumstance. But there are some instances where the courts have refused to grant bail pending trial. For instance, the courts refused to grant bail to former Chief of Army Staff, Lieutenant General Ishaya Bamaiyi (rtd), and Muhammed Sani Abacha who were charged with conspiracy to murder, attempted murder and murder, on the grounds of their likelihood to jump bail and interfering with witnesses. The prosecution had relied heavily on the killing of a vital witness.

But, let's take a closer look at the instance where the court refused to grant bail to an accused person on the grounds of national security/public interest – as witnessed in the case of the Niger Delta militant leader, Asari.

Asari was arraigned on the 6th of October, 2005 on a five-count charge of conspiracy; treasonable felony; forming, managing and assisting in managing an unlawful society; publishing of false statement; and being a member of an unlawful society. His application for bail was refused by the trial court and the refusal was upheld by the Court of Appeal and the Supreme Court on the grounds of national security. Fetus Keyamo was right when he stated that the Supreme Court enunciated the principle that where national security is threatened, the rights of an individual may be suspended.

The Supreme Court indeed stated in that case as follows: “The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than any citizen's liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual's liberty or right may not even exist.”

However, in arriving at the decision that the security of the nation was at risk, the Court considered evidence placed before it by the prosecution, evidence that neither Asari nor his legal team disputed. Among the evidence was a communique co-signed by Asari, where several radical groups – Niger Delta Peoples Salvation Front (NDSF), Niger Delta Peoples Volunteer Force (NDPVF) and the Pan Niger-Delta Action Conference/Council (PANDAC) – listed grievances against the government, including hike in fuel price and the looting of the oil revenue accruing to the people of Niger Delta, a situation that they alleged left the communities in a state of neglect and abject poverty. As a result, they threatened to take up arms against the government and cause civil disorder that would lead to the overthrow of the government.

It was within the context of what the Court considered were active threats to the sovereignty of Nigeria and the security of lives and properties that bail was refused. It is only the courts that have the constitutional power and authority to determine whether an accused person ought to be granted bail, pending his/her trial.

What, therefore, is the overriding public interest that warrants the continued detention of Dasuki? The Attorney General merely raises sentiments by referring to the allegations against the former NSA to President Jonathan – mainly the diversion of $2.1 billion meant for the purchase of military hardware to fight terrorism and insurgency in the country. This is by no means a trivial charge but it also does not constitute sufficient grounds to refuse an order granting him bail.

References are being made to thousands of lives that have been lost as a direct consequence of the failure to purchase arms to quell the Boko Haram insurgency. While one is also not trivializing the death toll arising from the insurgency, Dasuki is not standing trial for murder. Instead, he is accused of diversion of funds, corruption and money laundering.

Several past public officials who are standing trial for similar offences have been released following their successful bail applications. One cannot help but wonder if there is some unstated factor that makes Dasuki's case different than the others.

One shudders to think what would happen in the event the courts acquit Dasuki on the grounds that the government has not proved its case against him beyond reasonable doubt. Would the government obey an order discharging and acquitting him when it has failed to obey an order admitting him to bail? It is very tempting to see the trial as nothing but a charade being perpetrated by what appears to be an absolutist regime.

The call by the CJN to remove the DPP from the Office of the AGF is akin to applying a band-aid to a gunshot wound. What we should do is to completely separate the AGF's office from the office of the Minister of Justice. As we have clearly seen, it is quite impracticable for one man to act as lawyer to the government (AGF) – which usually means biased, partisan support of not just the offices of the government but the persons in the offices – and at the same time be the advocate of justice for the entire nation (Minister of Justice). The Department of Public Prosecutions will naturally be under the office of the Minister of Justice. This is the starting point.